"Marijuana ‘Green Rush’ Not As Sheltered From Federal Prosecution As 60 Minutes Suggests"

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Sunday’s 60 Minutes showcased the burgeoning success of Colorado’s medical marijuana industry, dubbed the “green rush.” Entrepreneurs have moved to the state to get in early on the potential cash cow, the state is bringing in new tax dollars, and Denver now hosts more than three times as many dispensaries as Starbucks and McDonalds combined.

But while the state’s industry is illegal under federal law and the Department of Justice is “not happy” with state laws legalizing medical marijuana, the segment suggests that federal prosecution is “not an issue,” pointing to Deputy Attorney General James Cole’s directive to U.S. attorneys “not to waste resources prosecuting patients or caregivers that are in clear compliance with state medical marijuana laws.”

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The reality is that federal crackdowns are an issue in a number of the 17 states that have medical marijuana laws, and to some extent even in Colorado.

Prominent prosecutions of other arguably state-compliant dispensaries include a now-pending action against the country’s largest dispensary, Harborside Health Center in Oakland and San Jose, Calif. The city of Oakland itself is so supportive of the dispensary that it recently filed a lawsuit against the federal government challenging its crackdown of the facility. But that hasn’t stopped federal prosecutors from going forward with challenges intended to disable the facility.

Just last month, the Department of Justice took its crackdown to Los Angeles, filing complaints against three dispensaries and issuing warning letters to 67 others. And in Montana, a 2011 raid of 26 dispensaries has made criminals of the former owners of a Montana medical marijuana dispensary founded by the man who helped draft and secure passage of the state’s medical marijuana law, and who went into the dispensary business to provide a model for compliance with state law. He and his partners provided frequent tours of the facility to lawmakers and law enforcement officials.

These crackdowns are explained in part by the fact that Cole’s directive to U.S. attorneys is not as broad as 60 Minutes’ Scott Kroft suggests. While Cole does discourage prosecutions of state-compliant “patients and caregivers,” the word “caregivers” has, since a 2011 change in policy, been interpreted narrowly not to include “commercial operations cultivating, selling or distributing marijuana” such as those thriving in Colorado. During the segment, Cole described the DOJ’s position more generously:

Our focus is really on keeping it away from children. Our focus is keeping out of the hands of organized crime. Our focus is making sure that people aren’t through marijuana dispensaries using it as a pretext to do large-scale interstate drug dealing. These are the areas where we’re really trying to focus.

The prosecutions in Colorado have honed in on those dispensaries that they perceive as a risk to children because of their close proximity to a school. But it is not clear how some of the DOJ’s recent prosecutions and warnings in other states are tailored to Cole’s stated goals.

The dearth of prosecutions in Colorado is in part explained by the large number of dispensaries relative to limited DOJ resources. And the 60 Minutes segment does make clear that the Justice Department has used other tools to curb dispensaries, including threatening prosecution for financial institutions who do business with dispensaries. But at the local level, Boulder DA Stan Garnett tells 60 Minutes that you can’t even find a jury that will convict a marijuana defendant, given the state’s widespread support for decriminalization. Many jurors are implementing a practice known as jury nullification, meaning that they vote not to convict those charged with federal marijuana law violations even if they think they’ve committed the act, in protest of the law itself. This public support for marijuana decriminalization is also reflected in polls on the ballot initiatives to legalize even recreational marijuana in Colorado and Washington.

“This community has made it very clear that criminal enforcement of marijuana is not something they want me to spend any time on,” Garnett said.

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